Torts Released Questions

TORTS
RELEASED QUESTIONS
NOTE: These Released Questions may be useful for review but keep in mind
that they are older questions that are not as representative of the current
format of the exam as the questions developed by BARBRI.
Original versions of all questions copyright 1983, 1987, 1990 by National Conference of Bar Examiners.
All answers copyright 2013 by BARBRI, Inc. Original questions modified by BARBRI.
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any
means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval
system, without permission in writing from the publisher. Printed in the United States of America.
TORTS 1.
TORTS RELEASED QUESTIONS

Questions 1-2 are based on the following fact
situation:
1.
A secretary worked in an office in a building

occupied partly by her employer and partly by
a retail store. The two areas were separated by
walls and were in no way connected, except that
the air conditioning unit served both areas and
there was a common return-air duct.
The store began remodeling, and its
employees did the work, which included affixing
a plastic surfacing material to counters. To
fasten the plastic to the counters, the employees
purchased glue that was manufactured and
packaged in a sealed container by a manufacturer, and retailed by a paint company.
In the course of the remodeling job, one of the
stores employees turned on the air conditioning
and caused fumes from the glue to travel from
the store through the air conditioning unit and
into the secretarys office. The employees did not
know that there was common ductwork for the
air conditioners. The secretary was permanently
blinded by the fumes from the glue.
The label on the container of glue read,
DANGER. Do not smoke near this product.
Extremely flammable. Contains Butanone,
Toluol, and Hexane. Use with adequate ventilation. Keep out of the reach of children.
The three chemicals listed on the label are
very toxic and harmful to human eyes. The
manufacturer had received no reports of eye
injuries during the 10 years that the product had
been manufactured and sold.
If the secretary asserts a claim against the

paint company, the most likely result is that
she will:
(A) Recover if she can recover against the
manufacturer.
(B) Recover, because the secretary was an
invitee of a tenant in the building.
(C) Not recover, unless the paint company
was negligent.
(D) Not recover, because the glue came in
a sealed package.
2.
If the secretary asserts a claim against the

store, the most likely result is that she will:
(A) Recover, because a user of a product
is held to the same standard as the
manufacturer.
(B) Recover, because the employees of the
store caused the fumes to enter her
area of the building.
(C) Not recover, because the store used the
glue for its intended purpose.
(D) Not recover, because the employees of
the store had no reason to know that
the fumes could injure the secretary.
2. RELEASED QUESTIONS

situation:
When a homeowner heard that his neighbor
intended to sell his home to a minority
purchaser, the homeowner told the neighbor that
the neighbor and his wife and children would
meet with accidents if he did so. The neighbor
then called the prospective purchaser and told
him that he was taking the house off the market.
3.
If the neighbor asserts a claim against the

homeowner for assault, the neighbor will:
(A) Recover if the homeowner intended to
place the neighbor in fear of physical
harm.
(B) Recover, because the homeowners
conduct was extreme and outrageous.
(C) Not recover if the homeowner took
no action that threatened immediate
physical harm to the neighbor.
(D) Not recover, because the neighbors
action removed any threat of harmful
force.
4.
If the neighbor asserts a claim against the

homeowner for intentional infliction of
emotional distress, the neighbor will:
(A) Recover if the neighbor suffered severe
emotional distress as a consequence of
the homeowners conduct.
(B) Recover, because the homeowner
intended to frighten the neighbor.
(C) Not recover, because the homeowner
made no threat of immediate physical
harm to the neighbor or his family.
(D) Not recover if the neighbor suffered no
physical harm as a consequence of the
homeowners conduct.
Question 5
A licensed physician resided in her own home.
The street in front of the home had a gradual
slope. The doctors garage was on the street
level, with a driveway entrance from the street.
At two in the morning, the doctor received
an emergency call. She dressed and went to the
garage to get her car and found a car parked in
front of her driveway. That car was occupied
by a driver who, while intoxicated, had driven
to that place and now was in a drunken stupor
in the front seat. Unable to rouse the driver, the
doctor pushed him into the passengers side of
the front seat and got in on the drivers side. The
doctor released the brake and coasted the car
down the street, planning to pull into a parking
space that was open. When the doctor attempted
to stop the car, the brakes failed to work, and the
car crashed into the wall of a home, damaging
the home and the drivers car and injuring the
doctor and the driver. Subsequent examination
of the car disclosed that the brake linings were
badly worn. A state statute prohibits the operation of a motor vehicle unless the brakes are
capable of stopping the vehicle within specified
distances at specified speeds. The brakes on
the drivers car were incapable of stopping the
vehicle within the limits required by the statute.
Another state statute makes it a criminal offense
to be intoxicated while driving a motor vehicle.
The state follows traditional contributory negligence rules.
If the driver asserts a claim against the doctor
for his injuries, the driver will probably:
(A) Recover, because the doctor was negligent
as a matter of law.
(B) Recover, because the doctor had no right to
move the car.
(C) Not recover, because his brakes were defective.
(D) Not recover, because he was in a drunken
stupor when injured.
TORTS 3.
Question 6
Question 7
A construction company contracted to build

a laundry for a property owner on the latters
vacant lot in a residential area. As a part of its
work, the construction company dug a trench
from the partially completed laundry to the
edge of a public sidewalk; waterlines were to be
installed in the trench. Because of the contour
of the land, the trench was dug to a depth
ranging from seven to nine feet. The construction company did not place any barriers around
the trench and permitted it to lie open for almost
a week while waiting for the delivery of water
pipes. This was known to the property owner,
but it raised no objection.
A company that sold new and used machinery

stored discarded machinery, pending sale for
scrap, on a large vacant area it owned. This area
was unfenced and was one-quarter mile from
the housing development where a 10-year-old
boy lived. The company knew that children
frequently played in this area and on the
machinery. The boys parents had directed him
not to play on the machinery because it was
dangerous.
During the time the trench was open, a

series of heavy rains fell, causing five feet of
surface water to gather in the bottom of the
trench. While this condition existed, a fiveyear-old boy who was playing on the vacant lot
with friends stumbled and fell into the trench.
An adult passerby saw this and immediately
lowered himself into the trench to rescue the boy.
However, his doing so caused the rain-soaked
walls of the trench to collapse, killing both him
and the boy.
In a claim for wrongful death by the boys
administrator against the construction company,
the most likely result is that plaintiff will:
(A) Recover, because the defendant left the
open trench unprotected.
(B) Recover, because construction companies
are strictly liable for inherently dangerous
conditions.
(C) Not recover, because the boy was a
trespasser.
(D) Not recover, because the boys death was
a result of the collapse of the trench, an
independent intervening cause.
One day the boy was playing on a press in the

companys storage area. The press had several
wheels, each geared to the other. The boy
climbed on the largest wheel, which was about
five feet in diameter. The boys weight caused
the wheel to rotate, his foot was caught between
two wheels that were set into motion, and he was
severely injured.
A claim for relief was asserted by the
boy through a duly appointed guardian. The
company denied liability and pleaded the boys
contributory fault as a defense.
In determining whether the company
breached a duty to the boy, which of the
following is the most significant?
(A) Whether the press on which the boy was
injured was visible from a public way.
(B) Whether the maintenance of the area for
the storage of discarded machinery was a
private nuisance.
(C) Whether the maintenance of the area of
the storage of discarded machinery was a
public nuisance.
(D) Whether the company could have eliminated the risk of harm without unduly
interfering with the companys normal
operations.
Question 8
A homeowner hired a contractor to remodel
the homeowners kitchen. She had learned of
him through a classified advertisement he placed
in the local newspaper. During the telephone
conversation in which she hired him, he stated
he was experienced and qualified to do all necessary work. Because of his low charge for his
work, they agreed in writing that on acceptance
of his job by the homeowner, he would have no
further liability to her or to anyone else for any
defects in materials or workmanship, and that
she would bear all such costs.
The homeowner purchased a dishwasher
manufactured by an appliance company from a
dealer in the retail electrical appliance business.
The washer was sold by the dealer with only the
manufacturers warranty and with no warranty
by the dealer; the appliance company restricted
its warranty to 90 days on parts and labor. The
contractor installed the dishwasher.
Two months after the homeowner accepted the
entire job, she was conversing in her home with
an accountant, an acquaintance who had agreed
to prepare her income tax return gratuitously.
As they talked, they noticed that the dishwasher
was operating strangely, repeatedly stopping
and starting. At the homeowners request, the
accountant gave it a cursory examination and,
while inspecting it, received a violent electrical
shock which did him extensive harm. The
dishwasher had an internal wiring defect that
allowed electrical current to be carried into the
framework and caused the machine to malfunction. The machine had not been adequately
grounded by the contractor during installation;
if it had been, the current would have been led
harmlessly away. The machine carried instructions for correct grounding, which the contractor
had not followed.
If the accountant asserts a claim based on
strict liability against the appliance company for
damages, the probable result is that the accountant will:
(A) Recover, because the dishwasher was defectively made.
(B) Recover, because the appliance company is
vicariously liable for the improper installation.
(C) Not recover, because he assumed the risk
by inspecting the machine.
(D) Not recover, because he was not the
purchaser.
Question 9
A drive-in hamburger and ice cream stand
recently opened for business in a suburban town.
The drive-ins business hours are from 9 a.m. to
midnight. It is in an area that for 15 years has
been zoned for small retail businesses, apartment
buildings, and one and twofamily residences.
The zoning code specifies that small retail
businesses include businesses where food and
drink are dispensed for consumption on the
premises. The drive-in was the first drive-in in
the town. For seven years a retired couple have
owned and lived in their single-family residence,
which is across the street from the drive-in.
On opening day a brass band played in the
parking lot of the drive-in until midnight, and
the noise of cars and the usual activity as a result
of the new business prevented the retired couple
from getting to sleep until well after midnight,
long after their usual time. The drive-in is
heavily patronized during the day and night
by high school students. The noise of cars, the
lights of the cars, the lights illuminating the
parking lot at the drive-in, and the noise from
the loudspeaker of the ordering system prevented
the retired couple from sleeping before midnight.
Paper cups, napkins, and other items from the
drive-in are regularly blown into the retired
couples front yard by the prevailing wind. The
traffic to and from the drive-in is so heavy on
the street in front of their house that the retired
couple are afraid to allow their grandchildren to
play in the front yard.
TORTS 5.
The retired couple have asserted a claim

against the drive-in based on private nuisance.
The most likely effect of the fact that the
retired couple were in the area before the
drive-in is that it:
(A) Requires that the retired couples interest be
given priority.
(B) Is irrelevant because of the zoning
ordinance.
(C) Is irrelevant because conforming economic
uses are given priority.
(D) Is some, but not controlling, evidence.

situation:
Maple Street is a local public thoroughfare in a city, designated as a one-way street
for northbound traffic. Pine Street is a public
thoroughfare, designated as a one-way street
for eastbound traffic. Maple and Pine Streets
intersect at right angles. The intersection is
controlled by traffic lights. There are two sets
of lights, one at the northeast corner and one at
the northwest corner, for traffic on Maple Street.
There are two sets of lights, one at the northeast
corner and one at the southeast corner, for traffic
on Pine Street.
A trucker was making a delivery to a market
on the east side of Maple Street, just north of its
intersection with Pine Street. There being insufficient space for his truck and enclosed trailer,
he parked it with the rear of the trailer extending
entirely across the crosswalk on the north side
of the intersection. The height of the trailer was
such that it entirely obscured the traffic light
on the northeast corner from the view of traffic
moving east on Pine Street. Unknown to the
trucker, the traffic light at the southeast corner
was not functioning, because a collision 72
hours earlier had knocked down the pole from
which the light was suspended.
A visitor on his first trip to the city was
driving east on Pine Street. Not seeing any
traffic light or pole, he entered the intersection
at a time when the light was red for eastbound
traffic and green for northbound traffic. A
driver, proceeding north on Maple Street and
seeing the green light, entered the intersection
without looking for any cross traffic and struck
the visitors car. The driver received personal
injuries, and the visitors car was damaged
severely as a result of the impact.
State statutes make it a misdemeanor (1) to
park a motor vehicle so that any part projects
into a crosswalk and (2) to enter an intersection
contrary to a traffic signal.
10. If the driver asserts a claim against the

trucker and establishes that the trucker was
negligent, the likely result is that the truckers negligence is:
(A) A legal but not an actual cause of the
drivers injuries.
(B) An actual but not a legal cause of the
drivers injuries.
(C) Both an actual and a legal cause of the
drivers injuries.
(D) Neither an actual nor a legal cause of
the drivers injuries.
11. If the driver asserts a claim against the city,
the theory on which he has the best chance
of prevailing is that the city:
(A) Is strictly liable for harm caused by a
defective traffic signal.
(B) Was negligent in not replacing the
broken pole within 72 hours.
(C) Had an absolute duty to maintain
installed signals in good operating
order.
(D) Created a dangerous trap by not
promptly replacing the broken pole.
Question 12
A month after a woman and a man got
married, the womans ex-husband secretly
entered their rented apartment during their
absence by using a master key. The ex-husband
placed a microphone behind the bookstand in
the bedroom of the apartment and drilled a hole
in the nearby wall, with the result that the microphone appeared to be connected with wires
going into the adjoining apartment. Actually, the
microphone was not connected to anything. The
ex-husband anticipated that the woman would
discover the microphone in a few days and
would be upset by the thought that someone had
been listening to her conversations with the man
in their bedroom.
Shortly thereafter, as he was putting a book
on the stand, the man noticed the wires behind
the bookstand and discovered the hidden microphone. He then called the woman and showed
her the microphone and wires. The woman
fainted and, in falling, struck her head on the
bookstand and suffered a mild concussion. The
next day the man telephoned the ex-husband and
accused him of planting the microphone. The
ex-husband laughingly admitted it.
If the woman asserts a claim against the
ex-husband based on infliction of mental distress,
the fact that the man was the person who showed
her the microphone will:
(A) Relieve the ex-husband of liability, because
the man was careless in so doing.
(B) Relieve the ex-husband of liability, because
the mans conduct was the immediate cause
of the womans harm.
(C) Not relieve the ex-husband of liability,
because the ex-husbands goal was
achieved.
(D) Not relieve the ex-husband of liability,
because the conduct of a third person is
irrelevant in emotional distress cases.
TORTS 7.

situation:
A man was rowing a boat on a mountain lake
when a storm suddenly arose. Fearful that the
boat might sink, the man rowed to a boat dock
on shore and tied the boat to the dock. The shore
property and dock were private property.
While the boat was tied at the dock, the owner
of the property came down and ordered the
man to remove the boat because the action of
the waves was causing the boat to rub against a
bumper on the dock. When the man refused, the
owner untied the boat and cast it adrift. The boat
sank.
13. A necessary element in determining if the
man is liable for a trespass is whether:
(A) The owner had clearly posted his
property with a sign indicating that it
was private property.
(B) The man knew that the property
belonged to a private person.
(C) The man had reasonable grounds to
believe the property belonged to a
private person.
(D) The man had reasonable grounds to
believe his boat might be swamped
and might sink.
14. If the man asserts a claim against the owner
for loss of the boat, the most likely result is
that the owner will:
(A) Have no defense under the circumstances.
(B) Prevail, because the man was a
trespasser ab initio.
(C) Prevail, because the boat might have
damaged the dock.
(D) Prevail, because the man became a
trespasser when he refused to remove
the boat.

situation:
16. If the claim is asserted against the boy, the

most likely result is the boy will be:
A six-year-old boy has a well-deserved reputation for bullying younger and smaller children.
His parents have encouraged him to be aggressive and tough. The boy, for no reason, knocked
down, kicked, and severely injured a four-yearold child. A claim has been asserted by the
childs parents for their medical and hospital
costs and for the childs injuries.
(A) Liable, because he intentionally

harmed the child.
15. If the claim is asserted against the boys

parents, the most likely result is they will
be:
(A) Liable, because parents are strictly
liable for the torts of their children.
(B) Liable, because the boys parents
encouraged him to be aggressive and
tough.
(C) Not liable, because a child under seven
is not liable in tort.
(D) Not liable, because parents cannot be
held liable for the tort of a child.
(B) Liable, because, as a six-year-old, he

should have known his conduct was
wrongful.
(C) Not liable, because a child under seven
is not liable in tort.
(D) Not liable, because he is presumed to
be under his parents control and they
have the sole responsibility.
TORTS 9.

situation:
(A) The local retailer did not inform the

woman of the warning on the crate.
A woman recently purchased a new uncrated

electric range for her kitchen from a local
retailer. The range has a wide oven with a large
oven door. The crate in which the manufacturer
shipped the range carried a warning label that
the stove would tip over with a weight of 25
pounds or more on the oven door. The woman
has one child, age three. The child was playing
on the floor of the kitchen while the woman
was heating water in a pan on the stove. The
telephone rang and the woman went into the
living room to answer it. While she was gone
the child decided to find out what was cooking.
She opened the oven door and climbed on it to
see what was in the pan. The childs weight (25
pounds) on the door caused the stove to tip over
forward. The child fell to the floor and the hot
water spilled over her, burning her severely. The
woman ran to the kitchen and immediately gave
her first aid treatment for burns. The child thereafter received medical treatment.
(B) The stove was substantially in the

same condition at the time it tipped
over as when it was purchased from
the local retailer.
The childs burns were painful. They have

now healed and do not bother her, but she has
ugly scars on her legs and back. The childs
claim is asserted on her behalf by the proper
party.
17. If the child asserts a claim based on strict
liability against the local retailer, she must
establish that:
(C) The local retailer made some change

in the stove design or had improperly
assembled it so that it tipped over more
easily.
(D) The local retailer knew or should have
known that the stove was dangerous
because of the ease with which it
tipped over.
18. If the child asserts a claim based on strict
liability against the manufacturer, she must
establish that:
(A) The defendant negligently designed
the stove.
(B) Stoves made by other manufacturers
do not turn over with a 25-pound
weight on the oven door.
(C) The defendant failed to warn the
woman that the stove would turn over
easily.
(D) The stove was defective and unreasonably dangerous to her.
Question 19
A patron was eating in a restaurant when
he began to choke on a piece of food that had
lodged in his throat. A physician who was
sitting at a nearby table did not wish to become
involved and did not render any assistance,
although prompt medical attention would have
been effective in removing the obstruction from
the patrons throat. Because of the failure to
obtain prompt medical attention, the patron
suffered severe brain injury from lack of oxygen.
If the patron asserts a claim against the physician for his injuries, will the patron prevail?
(A) Yes, if the jurisdiction relieves physicians
of malpractice liability for emergency first
aid.
(B) Yes, if a reasonably prudent person with the
physicians experience, training, and knowledge would have assisted the patron.
(C) No, because the physician was not responsible for the patrons condition.
(D) No, unless the physician knew that the
patron was substantially certain to sustain
serious injury.

situation:
Young parents purchased a new mobile
home from a seller. The mobile home was
manufactured with a ventilating system
designed by the manufacturer that had both
a heating unit and an air conditioner. The
manufacturer installed a furnace manufactured
by a heating company and an air conditioning
unit manufactured by a cooling company. Each
was controlled by an independent thermostat
installed by the manufacturer. Because of the
manner in which the manufacturer designed the
ventilating system, the first time the ventilating
system was operated by the parents, cold air was
vented into the parents bedroom to keep the
temperature at 68 F (20 C). The cold air then
activated the heater thermostat, and hot air was
pumped into the bedroom of the six-month-old
child of the parents. The temperature in the
childs room reached more than 170 F (77 C)
before the childs mother became aware of the
condition and shut the system off manually. As
a result, the child suffered permanent physical
injury.
Claims have been asserted by the child,
through a duly appointed guardian, against the
manufacturer, the seller, the heating company,
and the cooling company.
20. If the childs claim against the seller is
based on negligence, the minimum proof
necessary to establish the sellers liability is
that the ventilating system:
(A) Was defective.
(B) Was defective and had not been
inspected by the seller.
(C) Was defective and had been inspected
by the seller, and the defect was not
discovered.
(D) Was defective, and the defect would
have been discovered if the seller had
exercised reasonable care in inspecting
the system.
21. If the childs claims against the manufacturer, the heating company, and the cooling
company are based on strict liability in tort,
the child will probably recover against:
(A) The manufacturer only, because the
ventilating system was defectively
designed by the manufacturer.
(B) The heating company only, because
it was the excessive heat from the
furnace that caused the childs injuries.
(C) The manufacturer and the heating
company only, because the combination of the manufacturers design and
the heating companys furnace caused
the childs injuries.
(D) The manufacturer, the heating
company, and the cooling company,
because the combination of the
manufacturers design, the heating
companys furnace, and the cooling
companys air conditioning unit caused
the childs injuries.
Question 22
The owner of a second hand goods store often
placed merchandise on the sidewalk, sometimes
for short intervals, sometimes from 7 a.m. until 6
p.m. Pedestrians from time to time stopped and
gathered to look at the merchandise. A tenant
had moved into an apartment that was situated
immediately above the owners store; a streetlevel stairway entrance was located about 20
feet to the east. On several occasions, the tenant
had complained to the owner about the situation
because not only were his view and peace of
mind affected, but also his travel on the sidewalk
was made more difficult. The tenant owned and
managed a restaurant two blocks to the west of
his apartment and made frequent trips back and
TORTS 11.
forth. There was a back entrance to his apartment through a parking lot; this entrance was
about 200 feet farther in walking distance from
his restaurant. Once the tenant complained to the
police, whereupon the owner was arrested under
a local ordinance which prohibited the placing of
goods or merchandise on public sidewalks and
imposed, as its sole sanction, a fine for its violation.
One day, the sidewalk in front of the owners
store was unusually cluttered because he was
cleaning and mopping the floor of his shop. The
tenant saw a bus he wished to take and raced
down the stairs and onto the cluttered sidewalk
in front of the owners store. While dodging
merchandise and people, the tenant fell. The
tenant suffered broken bones and was unable to
attend to his duties for six weeks.
If, prior to the day of his personal injuries,
the tenant had asserted a claim based on public
nuisance for injunctive relief against the owner
for his obstruction of the sidewalk in violation of
the ordinance, the defense on which the owner
would have most likely prevailed is that:
(A) The tenant consented to the obstruction by
continuing to rent his apartment.
(B) The violation of the ordinance was not
unreasonable.
(C) Remedy of abatement by self-help was
adequate.
(D) There was no claim for special damage.
Question 23
A city has an ordinance that makes it an
offense, punishable by fine, for the owner of
a dog to permit the dog to run unleashed on a
public way. A police officer observed a small
dog running loose in the street. As the officer
picked the dog up, the dogs owner, who was
seated in her car lawfully parked at the curb,
called out, Oh, thank you, Officer, for returning
Fido. The officer asked the owner whether
the dog was hers, and when she acknowledged
ownership, he asked to see her drivers license.
The owner gave her name and address, but she
refused to produce a drivers license. The officer
then told her to produce her drivers license
if she did not want to go to jail. The owner
responded by saying, Isnt this ridiculous? The
officer took her by the arm and said, Lets go.
You are under arrest.
The owner cried out that the officer was
hurting her but he refused to release her arm,
and she struck him with her free hand. The
officer then dragged the owner from her car,
forced her into his squad car, and took her to the
police station.
The incident took place on the street in front
of the apartment where the owner and her aged
father lived. The officer did not know that the
father had observed what took place from a
window in the apartment.
If the owners father asserts a claim against
the officer for the intentional infliction of
emotional distress, will the father prevail?
(A) Yes, if the officers acts caused the father
severe emotional distress.
(B) Yes, if it is found that the officers behavior
was extreme and outrageous with respect to
the owner.
(C) No, because the officer did not know that
the father was watching.
(D) No, because the father was not within the
zone of physical danger.

situation:
A gas company owns a storage facility where
flammable gases are stored in liquefied form
under high pressure in large spherical tanks. The
facility was constructed for the gas company
by a contractor that specializes in the construction of such facilities. After the facility had
been in use for five years, an explosion in the
facility started a large fire that blanketed the
surrounding countryside with a high concentration of oily smoke and soot.
A farmer owns a large truck farm near the
facility. His entire lettuce crop was destroyed by
oily deposits left by the smoke.
24. If the farmer asserts a claim against the gas
company for the loss of his lettuce crop and
is unable to show any negligence on the
part of the gas company, will the farmer
prevail?
(A) Yes, because the operation of the
storage facility was an abnormally
dangerous activity.
(B) Yes, because the intrusion of the
smoke onto the farmers farm
amounted to a trespass.
(C) No, if the explosion was caused by
internal corrosion that reasonable
inspection procedures would not have
disclosed.
(D) No, if the explosion was caused by
negligent construction on the contractors part.
25. If the farmer asserts a claim against the

contractor for the loss of his lettuce crop,
will the farmer prevail?
(A) No, if the contractor did not design the
storage facility.
(B) No, because the contractor was an
independent contractor.
(C) Yes, because the operation of the
storage facility was an abnormally
dangerous activity.
(D) Yes, if the explosion resulted from a
defect of which the contractor was
aware.
TORTS 13.
Question 26
A private duty nurse had on occasion worked
in a local hospital. The hospital called the private
duty referral agency through which the nurse
usually obtained employment, and asked that in
the future she not be assigned to patients in the
hospital. The agency asked the hospital why it
had made the request. The hospital sent a letter
to the agency giving as the reason for its request
that significant amounts of narcotics had disappeared during the nurses shifts from the nursing
stations at which she had worked.
If the nurse asserts a claim based on defamation against the hospital, the nurse will:
(A) Recover, because the hospital accused the
nurse of improper professional conduct.
(B) Recover if the nurse did not take the
narcotics.
(C) Not recover if narcotics disappeared during
the nurses shifts.
(D) Not recover if the hospital reasonably
believed that the nurse took the narcotics.
Question 27
Question 28
When a woman visited a bowling alley to

participate in the weekly bowling league competition held there she brought her two-year-old
child along and left him in a nursery provided
by the owner of the bowling alley for the convenience of his customers. The children in the
nursery were normally supervised by three attendants, but at this particular time, as the woman
knew, there was only one attendant present to
care for about 20 children of assorted ages.
A motorist drove his car into an intersection

and collided with a fire engine that had entered
the intersection from the motorists right. The
accident was caused by negligence on the motorists part. As a result of the accident, the fire
engine was delayed in reaching a homeowners
house, which was entirely consumed by fire. The
homeowners house was located about 10 blocks
from the scene of the accident.
About 30 minutes later, while the attendant

was looking the other way, the child suddenly
started to cry. The attendant found him lying on
his back, picked him up, and called his mother.
It was later discovered that the child had suffered
a skull fracture.
If the homeowner asserts a claim against the

motorist, the homeowner will recover:
(A) That part of his loss that would have been
prevented if the collision had not occurred.
(B) The value of his house before the fire.
If a claim is asserted against the owner on the

childs behalf, will the child prevail?
(C) Nothing, if the motorist had nothing to do

with causing the fire.
(A) Yes, because the owner owed the child the

highest degree of care.
(D) Nothing, because the motorists conduct

did not create an apparent danger to the
homeowner.
(B) Yes, because a two-year-old is incapable of

contributory negligence.
(C) No, unless the owner or his employees
failed to exercise reasonable care to assure
the childs safety.
(D) No, if the woman assumed the risk by
leaving the child in the nursery.
TORTS 15.
Question 29
Question 30
A buyer purchased a used car from a used

car dealer. Knowing them to be false, the dealer
made the following statements to the buyer prior
to the sale:
A customer went into a store at approximately

6:45 p.m. to look at some suits that were on sale.
The clerks were busy, and one of them told him
that he should wait on himself. The customer
selected three suits from a rack and went into
the dressing room to try them on. Signs posted
on the walls of the store state that closing time
is 9 p.m.; however, because of a special awards
banquet for employees, the store was closed at
7 p.m. on this day. The employees, in a hurry to
get to the banquet, did not check the dressing
rooms or turn off the lights before leaving.
When the customer emerged from the dressing
room a few minutes after 7 p.m., he was alone
and locked in. The customer tried the front
door but it was secured on the outside by a bar
and padlock, so he went to the rear door. The
customer grabbed the doorknob and vigorously
shook the door. It did not open, but the activity
set off a mechanism that had been installed
because of several recent thefts committed by
persons who had hidden in the store until after
closing time. The mechanism sprayed a chemical
mist in the customers face, causing him to
become temporarily blind. The mechanism
also activated an alarm carried by the stores
security guard, who was just coming to work.
The security guard unlocked the front door, ran
into the store, and grabbed the customer. The
customer, who was still unable to see, struck out
at this person and hit a metal rack, injuring his
hand. The security guard then identified himself,
and the customer did the same. After assuring
himself that the customer was telling the truth,
the watchman allowed him to leave.
Statement 1. This car has never been involved

in an accident.
Statement 2. This car gets 25 miles to the
gallon on the open highway.
Statement 3. This is as smooth-riding a car as
you can get.
If the buyer asserts a claim against the dealer
based on deceit, which of the false statements
made by the dealer would support the buyers
claim?
(A) The first statement only.
(B) The second statement only.
(C) The first and the second statements only.
(D) The second and the third statements only.
If the customer is to prevail on a claim against

the store based on battery from the use of the
chemical spray, the customer must establish that:
(A) He suffered severe bodily harm.
(B) The spray mist was an offensive or harmful
contact.
(C) He suffered severe emotional distress.
(D) His conduct was not a factual cause of the
chemicals spraying him.
Question 31
An auto company was a small dealer in big
new cars and operated a service department.
A customer wanted to ask the service manager
whether the auto company would check the
muffler on his small foreign car. The customer
parked on the street near the service department
with the intention of entering that part of the
building by walking through one of the three
large entrances designed for use by automobiles. There was no street entrance to the service
department for individuals, and customers as
well as company employees often used one of
the automobile entrances.
As the customer reached the building, he
glanced behind him to be sure no vehicle was
approaching that entrance. Seeing none, he
walked through the entrance, but immediately he
was struck on the back of the head and neck by
the large overhead door which was descending.
The blow knocked the customer unconscious and
caused permanent damage.
The customer did not know how the door was
raised and lowered; however, the overhead door
was operated by the use of either of two switches
in the building. One switch was located in the
office of the service manager and the other was
located near the door in the service work area
for the convenience of the mechanics. On this
occasion, no one was in the service work area
except three auto company mechanics. The
service manager, who had been in his office, and
the three mechanics denied having touched a
switch that would have lowered the door. Subsequent investigation showed, however, that the
switches were working properly and that all of
the mechanisms for moving the door were in
good working order.
If the customer asserts a claim based on negligence against the auto company, the customer
probably will:
(A) Recover, because the auto company is
strictly liable under the circumstances.
(B) Recover, because an employee of the auto
company was negligent.
(C) Not recover, because the customer was a

licensee.
(D) Not recover, because the customer assumed
the risk.
situation:
A man was in the act of siphoning gasoline
from a neighbors car, in the neighbors garage
and without his consent, when the gasoline
exploded and a fire followed. A rescuer, seeing
the fire, grabbed a fire extinguisher from his car
and put out the fire, saving the mans life and
the neighbors car and garage. In doing so, the
rescuer was badly burned.
32. If the rescuer asserts a claim against the
man for personal injuries, the rescuer will:
(A) Prevail, because he saved the mans
life.
(B) Prevail, because the man was at fault
in causing the fire.
(C) Not prevail, because the rescuer
knowingly assumed the risk.
(D) Not prevail, because the rescuers
action was not a foreseeable consequence of the mans conduct.
33. If the rescuer asserts a claim against the
neighbor for personal injuries, the rescuer
will:
(A) Prevail, because he saved the neighbors property.
(B) Prevail, because he acted reasonably
in an emergency.
(C) Not prevail, because the neighbor was
not at fault.
(D) Not prevail, because the rescuer
knowingly assumed the risk.
TORTS 17.
Question 34
Question 35
A local telephone company negligently

allowed one of its telephone poles, located
between a street and a sidewalk, to become
termite-ridden. A motorist, who was intoxicated and driving at an excessive rate of speed,
lost control of her car and hit the weakened
telephone pole. One week later, the pole fell and
struck a pedestrian who was walking on the
sidewalk. The pole fell because of the combination of the force of the impact and the poles
termite-ridden condition.
While on a hiking trip during the late fall,

a hiker arrived toward the end of the day at
a clearing where several similar cabins were
located, none of which was occupied. One of the
cabins belonged to the hikers friend, who had
given the hiker permission to use it. The hiker
entered one of the cabins, which she thought was
her friends, and prepared to spend the night. In
fact the cabin was owned by someone else.
If the pedestrian asserts a claim against the

telephone company and the motorist, will the
pedestrian prevail?
(A) Yes, against the telephone company but not
the motorist.
(B) Yes, against the motorist but not the
telephone company.
(C) Yes, against the telephone company and the
motorist, each for one-half of his damages.
(D) Yes, against both the telephone company
and the motorist for the full amount of his
damages.
When the night turned cold, the hiker started

a fire in the stove. Unknown to the hiker, there
was a defect in the stove that allowed carbon
monoxide fumes to escape into the cabin. During
the night the fumes caused serious injury to the
hiker.
If the hiker asserts a claim against the cabin
owner for her injury, will the hiker recover?
(A) Yes, if the owner knew that the stove was
defective.
(B) Yes, if the owner could have discovered the
defect in the stove by a reasonable inspection.
(C) No, because the owner had no reason to
anticipate the hikers presence in the cabin.
(D) No, unless the hiker needed to use the cabin
for her own protection.
Question 36
Question 37
A group of children, ranging in age from 8 to

15, regularly played football on the common area
of an apartment complex. Most of the children
lived in the apartment complex, but some lived
elsewhere. The owner of the complex knew that
the children played on the common area and had
not objected.
A well-known politician was scheduled to

address a large crowd at a political dinner. Just
as the politician was about to sit down at the
head table, a comedian who had entertained the
crowd pushed the politicians chair to one side.
As a result, the politician fell to the floor. The
politician was embarrassed at being made to
look foolish before a large audience but suffered
no physical harm.
A 13-year-old who did not live in the apartment complex fell over a sprinkler head while
running for a pass and broke his leg. Although
the boy had played football on the common area
before, he had never noticed the sprinkler heads,
which protruded one inch above the ground
and were part of a permanently installed underground sprinkler system.
If a claim is asserted on the boys behalf, the
boy will:
(A) Prevail, if the sprinkler head was a hazard
that the boy probably would not discover.
(B) Prevail, because the owner had not objected
to children playing on the common area.
(C) Not prevail, because the boy did not live in
the apartment complex.
(D) Not prevail, unless the sprinkler heads
were abnormally dangerous to users of the
common area.
If the politician asserts a claim against the

comedian for damages because of his embarrassment, will the politician prevail?
(A) Yes, if the comedian knew that the politician was about to sit on the chair.
(B) Yes, if the comedian negligently failed to
notice that the politician was about to sit on
the chair.
(C) No, because the politician suffered no
physical harm along with his embarrassment.
(D) No, if in moving the chair the comedian
intended only a good-natured practical joke
on the politician.
Question 38
Many years ago, a cement company
constructed a plant for manufacturing readymix concrete. At that time the company was
using bagged cement, which caused little or no
dust. Several years later, the plaintiff bought a
home approximately 1,800 feet from the plant.
Recently, the company stopped using bagged
cement and began to receive cement in bulk
shipments. Since then at least five truckloads
of cement have passed the plaintiffs house
daily. Cement blows off the trucks and into
the plaintiffs house. When the cement arrives
at the plant, it is blown by forced air from the
trucks into the storage bin. As a consequence,
cement dust fills the air surrounding the plant to
a distance of 2,000 feet. The plaintiffs house is
the only residence within 2,000 feet of the plant.
If the plaintiff asserts a claim against the
company based on nuisance, will the plaintiff
prevail?
TORTS 19.
(A) Yes, unless using bagged cement would

substantially increase the companys costs.
(B) Yes, if the cement dust interfered unreasonably with the use and enjoyment of the
plaintiffs property.
(C) No, because the company is not required to
change its industrial methods to accommodate the needs of one individual.
(D) No, if the companys methods are in
conformity with those in general use in the
industry.
TORTS 21.
TORTS ANSWERS
Answer to Question 1
(A) Because the manufacturer had no notice that the product would cause eye injuries, an action
against the manufacturer must be predicated on strict liability, not negligence. The strict duty
in such cases extends to any supplier in the distributive chain. Thus, if the manufacturer of the
glue is liable, then the paint company, the retailer, may also be subject to liability. Conversely, if
there is a determination that the manufacturer did not manufacture an unreasonably dangerous
product, then there will be no basis for holding the retailer liable. (B) is incorrect. It addresses the
secretarys status as a foreseeable victim of the fumes. However, it fails to address the basic issue
of liability. The secretary could be a foreseeable victim, yet she still must establish the unreasonably dangerous character of the product. (C) is incorrect because negligence is irrelevant to a
strict liability action, which the secretary can pursue against the paint company as a commercial
supplier. (D) is incorrect because the dangerous character of the glue emanates from its properties
during use, not its packaging. The fact that the paint company had no opportunity to inspect the
product is irrelevant to its liability.
(D) The secretary probably cannot recover against the retail store. An action against the retail store
would have to be based on the actions of its employees. Because it was not functioning as a
commercial supplier in this case, it cannot be held liable on a strict liability theory. A successful
action against it must be based on negligence. The employees had no notice of the dangerous
character of the glue, nor were they even aware of the common ductwork. Therefore, a cause of
action for negligence will not lie against the employees, and obviously will not lie against the
retail store. (A) is an incorrect statement of the law. (B) is incorrect. The employees did cause
the fumes to enter the secretarys area of the building. However, as has been shown, they were
unaware of the damage the fumes could cause, or that they were sending fumes into the other
area. (C) is incorrect because use of a product for its intended purpose does not negate the possibility of liability. If the retail stores employees acted negligently while using the product for its
intended purpose, the retail store could be held vicariously liable for their actions.
(C) The neighbor will not recover if the homeowners conduct did not threaten immediate physical
harm. A prima facie case for tortious assault requires that the defendant create a reasonable
apprehension in the plaintiff of immediate harmful or offensive contact to the plaintiffs person.
Threats of future harm do not give rise to an action for assault. (A) is incorrect because mere
intent to place in fear of physical harm is not enough. There must be a creation of reasonable
apprehension of immediate harm. (B) is incorrect; extreme and outrageous conduct is an element
of intentional infliction of emotional distress, but not of assault. (D) is incorrect because it is irrelevant, and later actions would not vitiate any threat of immediate harm.
(A) The neighbor will recover if he suffered severe emotional distress. The tort of intentional infliction of emotional distress requires: (i) an act by defendant amounting to extreme and outrageous conduct; (ii) intent to cause severe emotional distress or recklessness as to the effect of
the conduct; (iii) causation; and (iv) damages. If the neighbor suffered severe emotional distress
resulting from the homeowners conduct (which was extreme and outrageous and, at the very
least, reckless), he can recover from the homeowner. (B) is incorrect because intent, without
more, does not establish intentional infliction of emotional distress. (C) is incorrect because
immediate threat of physical harm is an element of assault rather than intentional infliction of
emotional distress. (D) is incorrect because, even though actual damages are required to win a
case grounded on intentional infliction of emotional distress, physical injuries are not required.
(C) The driver will not prevail because at common law the drivers contributory negligence will
completely bar his right to recover. The driver was contributorily negligent because he had been
operating a car with defective brakes in violation of the statute. (A) is wrong because the driver
was not in the class intended to be protected by the statute. It was the drivers obligation to ensure
that the brakes complied with the statute. (B) is incorrect because the existence of an emergency,
presenting little time for reflection, may be considered as among the circumstances under which
the defendant acted (i.e., he must act as the reasonable person would act in the same emergency).
Applying this criterion, the doctor was justified in moving the car. (D) is incorrect because a
person who is injured while intoxicated does not automatically lose a cause of action against the
person causing the injury. In addition, the harm in this case was not the type of harm which the
drunk driving statute was designed to prevent.
(A) The plaintiff will recover because leaving the trench uncovered was the proximate cause of the
boys death. Generally, rescuers are viewed as foreseeable intervening forces, and the original
tortfeasor will be liable for their negligence. (B) is wrong as a matter of law. Construction companies are subject to strict liability based on the same criteria applied to other companies and
individuals. The activity must be deemed abnormally dangerous to subject the party performing
the activity to strict liability. Leaving the trench uncovered was negligent, but it is not abnormally
dangerous. (C) is wrong because under the attractive nuisance doctrine, the defendant had a duty
to exercise ordinary care to avoid reasonably foreseeable harm to children caused by artificial
conditions on the property. The fact that children played on the vacant lot made it possible for the
defendant to anticipate infant trespassers. The defendant also knew of the dangerous condition,
and the expense of covering the trench would be slight in comparison with the magnitude of the
risk. (D) is incorrect, because even if the collapse of the trench was unforeseeable, the construction companys conduct still threatened to cause injury, and most courts find liability where there
is a foreseeable result of an unforeseeable cause.
(D) The most significant factor pertains to the burden on the company to eliminate the danger. Under
the attractive nuisance doctrine, most courts impose on a landowner the duty to exercise ordinary
care to avoid reasonably foreseeable risks of harm to children caused by artificial conditions on
the property. To assess this special duty on the landowner, the plaintiff must show, among other
things, that the expense of remedying the situation is slight compared with the magnitude of the
risk. Choice (D) most closely reflects that requirement. (A) is incorrect because most jurisdictions
no longer require that the child plaintiff be lured onto the property by the dangerous condition.
Thus, whether the press was visible from a public way would only be relevant to show that the
trespass was foreseeable, and here the facts indicate that the landowner was already aware that
children played on the machinery. (B) and (C) are incorrect because the doctrine of attractive
nuisance is distinct from nuisance law. The landowner may be liable even if the danger is neither a
public nor a private nuisance as to adjoining landowners.
TORTS 23.
(A) The accountant will recover because the dishwasher was defective. A prima facie products liability
action based on strict liability in tort requires proof that: (i) the defendant is a commercial supplier;
(ii) the defendant produced or sold a defective product; (iii) the defective product was the actual and
proximate cause of the plaintiffs injury; and (iv) the plaintiff suffered damage to person or property.
The accountant can make such a case because he need not prove that the defendant was at fault
in selling or producing a defective productonly that the product in fact is so defective as to be
unreasonably dangerous. The product also must have reached the user without substantial change
in the condition in which it is supplied. The fact that the dishwasher had an internal wiring defect
causing the machine to malfunction is a sufficient basis to impose strict liability. Any negligence by
the contractor as an intermediary does not void the manufacturers liability. Suppliers must anticipate
reasonably foreseeable uses even if they are misuses. (B) is wrong because the contractor was an
independent contractor with no relationship to the appliance company that vicarious liability would
support. (C) is wrong even though assumption of risk may sometimes be successfully raised in
strict liability cases. Here, the accountant did not know of the risk and did not voluntarily assume it.
(D) is incorrect because privity is not required to bring a strict liability action. A majority of courts
extend protection not only to buyers, but also to members of the buyers family, guests, friends, and
employees of the buyer, as well as foreseeable bystanders.
(D) The couples prior presence is some, but not controlling, evidence. Absent a valid defense, a defendant may not cause a substantial, unreasonable interference with a neighbors use or enjoyment of
his property. Whether the retired couple were there before or after the drive-in opened does not
control the result; plaintiffs right to the reasonable use or enjoyment of their land is the test. (A)
is wrong because the fact that one type of land use was entered into before another is relevant but
not conclusive evidence as to reasonableness of use. (B) is wrong because a use permitted under a
zoning ordinance may be shown to be unreasonable. (C) is a misstatement of law.
(C) The truckers negligence is both an actual and a legal cause of the drivers injuries. The drivers
injuries were actually caused by the trucker since they would not have occurred but for the truckers negligent parking. The trucker was also the legal (proximate) cause of the drivers injuries. It
was foreseeable that an eastbound car might proceed into the intersection when the traffic signal was
obstructed and possibly collide with another car possessing the right of waya foreseeable result
caused by a foreseeable intervening force. Therefore, (A), (B), and (D) are incorrect.
(B) The best theory for the driver is that the city was negligent in not replacing the broken pole within
72 hours. Nothing in the facts indicates that the city was under an absolute duty to maintain its
traffic poles. Hence, (A) and (C) are incorrect. (D) states no legal theory for the drivers claim and
so is not as good an answer as (B).
(C) The ex-husband will not be relieved of liability. The ex-husband intended to cause the woman the
severe emotional distress that did, in fact, result from his outrageous conduct. Hence, his conduct
satisfies the prima facie case and (C) is the correct response. The mans conduct was a foreseeable
response to the ex-husbands act and hence did not break the chain of causation leading to the
result intended by the ex-husband. Thus, (B) is wrong. (A) is unsupported by the facts, and (D)
is a misstatement of law; if the third persons conduct was unforeseeable, it may affect the defendants liability.
(D) A necessary element is whether the man had reasonable grounds to believe his boat might sink.
Although the man intended to go onto the owners property, his entry was privileged if the man
believed it was necessary to protect himself and/or his boat. Note that this privilege is qualified
in that the man must pay for any damage he caused to the owners property. (A), (B), and (C)
are incorrect because knowledge that the land is privately owned is irrelevant to the privilege of
necessity.
(A) The owner will have no defense. The privilege to invade land as a private necessity supersedes
the occupants right to protect the property from invasion; hence, the landowner is liable to the
invader for any harm suffered if entry is denied. (C) is wrong because the owner could have
recovered for injury to his dock, but had no right to resist the mans entry. (B) and (D) are incorrect because the mans entry was privileged.
(B) The parents most likely will be liable. Parents may be liable for negligence for failing to prevent
the tortious conduct of their children. Further, if parents know of their childs propensity to
harm, they have a duty to exercise due care to control the childs behavior. Here, they did just the
opposite. Hence, (D) is wrong. (C) is wrong because children are considered capable of committing torts. (A) is wrong because parents liability is based on negligence.
(A) The boy likely will be liable. A child is liable for his intentional torts whether or not he knows
of their wrongfulness. Hence, (B) is incorrect. (C) is wrong because there is no minimum age
for capacity to commit torts. Children generally are deemed to have the capacity to form the
intent to commit intentional torts. (D) is wrong because parents are not vicariously liable for their
childrens torts.
(B) The child must establish that the stove was in substantially the same condition. To hold the
commercial supplier strictly liable for a product defect, the product must be expected to, and
must in fact, reach the user or consumer without substantial change in the condition in which it
is supplied. (A) is wrong because warnings are only one consideration in determining whether
a product is in a defective condition unreasonably dangerous as required for strict liability
purposes. Strict liability can apply even if the customer is informed of the warnings. (C) is wrong
because it goes to an issue of negligence on the retailers part. It is unnecessary for a retailer to
affirmatively contribute to the defectiveness of the product for strict liability to apply. (See the
analysis of option (B), above.) (D) is incorrect because in a strict liability case it is unnecessary to
prove that the defendant was at fault in selling or producing a dangerous productonly that the
product is in fact so defective as to be unreasonably dangerous. Thus, plaintiff need not show that
TORTS 25.
the local retailer was aware or should have been aware of the danger. Options (A), (C), and (D) all
deal with fault on the local retailers part, and are, therefore, wrong in a strict liability analysis.
(D) The child must show that the stove had an unreasonably dangerous defect to establish a breach of
duty by the manufacturer. To establish a prima facie case based on strict liability in tort, the plaintiff must prove: (i) strict duty owed by a commercial supplier; (ii) breach of that duty; (iii) actual
and proximate cause; and (iv) damages. To establish breach of duty for a strict liability action,
the plaintiff need not prove that the defendant was at fault in selling or producing a dangerous
productonly that the product in fact is so defective as to be unreasonably dangerous. (A) is
wrong because negligence need not be proven in a strict liability case. (B) is wrong because the
availability of safer product alternatives is only one factor to be considered by the courts in determining whether a product is defective. (C) is incorrect because even though the warnings may
well have been inadequate because they were placed on the crate rather than on the stove itself,
the role of instructions and warnings is but one of many factors the courts will consider in determining the defective nature of a given product.
(C) The patron will not prevail. At issue is the physicians duty to the patron. Generally, the law
imposes no duty to affirmatively act for the benefit of others. There are exceptions to this
rulee.g., one who places another in a position of peril must use reasonable care to aid that
person; one who gratuitously acts for the benefit of another thereby assumes a duty to act like an
ordinary reasonable person. None of the exceptions is applicable to the case at bar. Therefore, (B)
and (D) are clearly incorrect. The Good Samaritan statute, described in (A), generally exempts
from liability medical personnel who voluntarily and gratuitously render emergency treatment.
However, it does not require them to provide such treatment. Thus, (A) is incorrect.
(D) The child must show that the system was defective and the defect should have been discovered. Under a negligence analysis, the defendants conduct must fall below the standard of care
expected of a reasonable person under like circumstances. In the instant case, the seller had
a duty, at the time of transfer of possession of the home to the parents, to disclose concealed,
unreasonably dangerous conditions, of which he knew or had reason to know, and of which he
knew the parents were ignorant and not likely to discover on reasonable inspection. Thus, if the
seller did not know of a defect in the ventilating system, and could not have discovered the defect
through reasonable care, a cause of action for negligence would not lie. (B) and (C) imply that
the seller would be liable in negligence merely for failure to inspect or for failure to discover the
defect upon inspection. However, there must also be a showing that a reasonable inspection would
have disclosed the defect. Consequently, (B) and (C) are incorrect. (A) is more appropriate to a
strict liability case, since it does not even mention the necessity for knowledge or discovery of the
defect. Therefore, it is an incorrect alternative.
(A) The child will probably recover against the manufacturer only. The issue is causation. But for the
manufacturers defective design of the ventilating system, the injury to the child would not have
occurred. Since the child can trace the injury to a defect in the ventilating system that existed
when it left the manufacturers control, cause in fact is established. The same concepts of proximate cause which govern negligence actions are applicable to strict liability actions for defective
products. The childs injury is the direct result of the manufacturers defective design, which is the
cause in fact of the injury. Thus, proximate cause is established. The heating companys furnace
and the cooling companys air conditioning unit contained no defects and did not cause injury to
the child. As the facts make clear, both units were controlled by a thermostat independent of the
units themselves. Thus, (B), (C), and (D) are incorrect.
(D) The owner would prevail in the absence of a claim for special damage. Public nuisance is an
act that unreasonably interferes with the health, safety, or property rights of the community.
Recovery is available for public nuisance only if a private party has suffered some unique damage
not suffered by the public at large. Thus, without a claim of special damage by the tenant, the
owner would be able to defend against the tenants public nuisance suit. (A) is wrong because it
is a form of the largely discredited coming to the nuisance defense. The tenant is entitled to
the reasonable use and enjoyment of his leasehold. Remaining in the apartment does not constitute consent. (B) is incorrect because the ordinance is enforceable against the owner even
if his violation is reasonable. This option is a distractor, designed to lure you into wrongfully applying the unreasonable interference test from private nuisance cases. (C) is incorrect
because only one who has suffered some unique damage has a privilege to abate a public nuisance
by self-help. In the absence of such unique damage, a public nuisance may be abated or enjoined
only by public authority.
(C) The father will not prevail. Where the defendant intentionally causes severe physical harm to one
person, and another person suffers severe emotional distress because of that persons relationship to the injured party, problems of intent and causation arise. To sustain a claim for intentional
infliction of emotional distress under such circumstances, the plaintiff generally must show: (i) he
was present when the injury occurred to the other person; (ii) he is a close relation of the injured
person; and (iii) the defendant knew that the plaintiff was present and a close relation to the
injured person. In the case at bar, we do not know that the owner suffered severe physical harm.
However, we do know that the officer was unaware that the father observed the incident. (A) and
(B) are incorrect, because they ignore the issue of whether the officer knew that the father was
watching. (D) is incorrect, because the term zone of physical danger is more appropriate to an
action for negligent infliction of emotional distress.
(A) The farmer will prevail. An activity may be characterized as abnormally dangerous if it (i) creates
a foreseeable risk of serious harm even when reasonable care is taken by the actors; and (ii) is
not a matter of common usage in the particular community. In such cases, the duty owed is an
absolute duty to make safe the condition. Liability will be imposed for any injuries to persons
or property resulting from the condition. Pursuant to the foregoing criteria, the gas companys
operation of the storage facility constitutes an abnormally dangerous activity, subjecting the gas
company to liability for damage caused by the explosion, regardless of any negligence on the
part of the gas company. Thus, (C) is incorrect. (D) is incorrect because any negligence on the
part of the contractor will not absolve the gas company of liability for maintenance of an abnormally dangerous condition. (B) is incorrect because where, as here, no physical object enters the
TORTS 27.
plaintiffs land, a court will generally treat the matter as a nuisance case or one involving strict
liability if an abnormally dangerous activity is involved, rather than as a trespass case.
(D) The farmer will prevail if the contractor was aware of a defect that caused the explosion. The
contractor, as the manufacturer of the facility, owed a duty of due care to any foreseeable plaintiff. The farmer, whose farm is located near the facility, is a foreseeable plaintiff. Therefore, if the
explosion resulted from a defect of which the contractor was aware, the contractor would be liable
to the farmer for the resultant loss of his lettuce crop. (B) is incorrect because the contractors
status as an independent contractor relative to the gas company has no bearing on the duty owed
by the contractor to the farmer. (A) is incorrect because the contractor will be liable for manufacturing the facility with knowledge of a defect, regardless of the identity of the facilitys designer.
(C) is incorrect because the contractor was the manufacturer, rather than the operator, of the
facility.
(D) The nurse will not recover if the hospital reasonably believed that she took the narcotics. In a
defamation action, a defendant may assert a claim of qualified privilege for statements made in
the interest of the publisher of the statement, the recipient of the statement, or both. The privilege
will be lost only if the statement is not within the scope of the privilege or if it was made with
malice (i.e., knowledge of falsity or reckless disregard of truth or falsity). In this case, the hospitals response to the agency on a matter of common interest was within the scope of the privilege.
Thus, (D) is correct because the hospitals reasonable belief would negate any malice on its part.
(A) is incorrect, because the accusation alone does not establish defamation when a claim of
qualified privilege is raised. (B) is incorrect, because the falsity of the statement does not dispose
of the question of qualified privilege. (C) is incorrect, because the disappearance of the narcotics
does not, by itself, establish a reasonable belief on the part of the hospital that the nurse was
responsible for the disappearance.
(C) The child will not prevail absent a showing of negligence. (A) is incorrect because the owner
owed the child the duty to act as an ordinary, prudent, reasonable personnot the highest
degree of care. (B) is incorrect because, even if a two-year-old were incapable of contributory
negligence, the plaintiff could prevail only if the defendant or his employees were negligent
i.e., failed to exercise reasonable care to ensure the plaintiffs safety. Because (C) reflects this
principle, it is the correct answer. (D) is incorrect because, even if the woman assumed the risk,
her assumption of risk will not be imputed to the plaintiff-child.
(A) The homeowner has a viable claim against the motorist. In negligently causing the collision with
the fire engine, it was foreseeable that the motorists actions could cause injury to someone else
(e.g., a local resident who the fire engine would be unable to reach because of the accident). The
homeowner, whose house was located only 10 blocks from the scene of the accident, falls within
the foreseeable zone of danger. It follows that (D) is incorrect. (C) is incorrect because, even if
the motorist was not involved in causing the fire, his negligence caused the delay in the arrival
of the fire engine. In turn, this delay may well have caused all or part of the damage suffered by
the homeowner. (B) is incorrect because it assumes, without a factual basis, that the motorists
negligence caused the entire loss. (A) is correct because it recognizes that the motorist breached
a duty of due care owed to the homeowner, and that the motorist will be liable for that part of the
homeowners damages that was actually and proximately caused by the motorists breach of duty.
(C) The first and second statements will support the buyers claim. A cause of action for deceit
requires: (i) a false representation of a material past or present fact; (ii) scienter; (iii) intent to
induce reliance; (iv) causation; (v) justifiable reliance; and (vi) damages. Generally, reliance upon
false statements of opinion, value, or quality is unjustified. Here, the dealers statements regarding
the cars not having been involved in an accident and the gasoline mileage constitute knowingly
false representations of material fact that will form the basis of a cause of action for deceit. Thus,
those statements will support the buyers claim. The third statement, regarding the smooth ride of
the car, is an opinion, upon which the buyer would not be justified in relying. Consequently, that
statement would not support the buyers claim for deceit. Therefore, (C) is correct, and (A), (B),
and (D) are wrong.
(B) The customer must establish that the spray mist was an offensive or harmful contact. In order to
establish a prima facie case for battery, the customer must show (i) an act by the defendant store
that brings about harmful or offensive contact to the customers person, (ii) intent by the store to
bring about such contact, and (iii) causation. (B) is correct since this is one of the elements necessary to establish a battery. (A) is wrong because there need not be severe bodily harm for a battery
to occur. The contact may be merely offensive without causing any bodily injury. (C) is wrong
because there need not be any emotional distress for a battery to occur. (D) is wrong because
the customers conduct of vigorously shaking the door was indeed the factual cause of the spray.
However, there was causation on the stores part in the sense of the store having set in motion a
force that would bring about a harmful or offensive contact to the customers person where there
was any attempt to open the door.
(B) The customer probably will recover because res ipsa loquitur applies. When the facts are such as
to strongly indicate that the plaintiffs injuries resulted from the defendants negligence, the trier
of fact may be permitted to infer the defendants liability. The circumstantial evidence doctrine
of res ipsa loquitur requires the plaintiff to show: (i) the accident causing his injury is of the type
that would not normally occur unless someone was negligent; (ii) the negligence was attributable to the defendant; and (iii) the plaintiff was free from negligence. All of these elements are
satisfied from the facts of this case. Because the switches and the doors were found to be in good
working order, the injury can reasonably be inferred to be attributable to one of the auto companys employees, because they had access to the switches. (A) is wrong because strict liability
applies to abnormally dangerous activities that cannot be performed without risk of serious harm
no matter how much care is taken. The operation of the door cannot be characterized as abnormally dangerous. (C) is incorrect because the owner has a duty to exercise reasonable care in
the conduct of active operations (such as opening and closing the door) for the protection of
licensees known to be on the property. (D) is incorrect because to have assumed the risk, the
plaintiff must have known of the risk and voluntarily assumed it. The customer had no reason to
know of any risk involving the overhead door and consequently could not assume it.
TORTS 29.
(B) The rescuer will prevail. It is foreseeable that where a defendants wrongful conduct places him
in a position of peril, a rescuer may suffer injuries while reasonably attempting to aid him, i.e.,
danger invites rescue. Hence, (B) is correct and (D) is incorrect. (C) is wrong because a rescue
is not a voluntary assumption of the risk. (A) is not a reason for imposing liability.
(C) The rescuer will not prevail. Because the neighbors conduct did not endanger the man, the
neighbor owed no duty to the man or his rescuer. Generally, there is no duty owed to an undiscovered trespasser such as the man here, whose conduct was unforeseeable. (A) and (B) are wrong
because the facts that the rescuer acted reasonably or saved the neighbors property are irrelevant
to the issue of the neighbors duty. (D) is wrong because an act of rescue is not an assumption of
the risk.
(D) The telephone company and the motorist are liable for the full amount as joint tortfeasors. In
cases where there are joint tortfeasors and the injury suffered is not divisible, each tortfeasor
will be jointly and severally liable for that injury. The rule of joint and several liability applies
even where (as in the case described by the facts) each defendant acted entirely independently.
Both defendants were negligent and contributed to the injuries suffered by the plaintiff when
the pole fell. (A) is incorrect because the telephone companys prior negligence has no effect on
the motorists liability. Her conduct was the direct cause of the foreseeable harmful result of the
pole falling; the fact that it did not happen immediately is irrelevant. (B) is incorrect because
the motorists reckless driving was not a superseding intervening force that would cut off the
telephone companys liability for its original negligence. Because of the telephone companys
negligence, it was foreseeable that the pole would fall. The fact that it was caused by anothers
reckless conduct, whether foreseeable or unforeseeable, does not cut off the telephone companys
liability. (C) is incorrect because there is no basis to divide the plaintiffs injuries as 50% caused
by the telephone company and 50% caused by the motorist.
(C) The hiker will not recover because she was an unforeseeable plaintiff to whom the owner owed no
duty. A duty of care is owed only to foreseeable plaintiffs. A trespasser is not a foreseeable plaintiff unless the landowner has discovered her presence or should reasonably know of trespassers
who constantly cross over a section of his land. Neither of these situations is indicated by the
facts. Thus, the hiker was an undiscovered trespasser to whom no duty is owed. The owner was
under no obligation to inspect his premises to determine if trespassers were entering his cabin.
(A) is incorrect. Because the owner owed no duty to the hiker, it is irrelevant whether the owner
knew that the stove was defective. (B) is incorrect for the same reason. The owner had no duty to
inspect the appliances in his cabin to make it safe for undiscovered trespassers. (D) is incorrect
because it mitigates the hikers liability for trespass but has no effect on the owners duty to the
hiker.
(A) The boy will prevail if the sprinkler head was a latent hazard. Most courts impose upon a
landowner the duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to
children caused by artificial conditions on his property. Under the general rule, the plaintiff must
show: (i) that there is a dangerous condition present on the land that the owner is (or should be)
aware of; (ii) that the owner knows or should know that young persons frequent the vicinity of this
dangerous condition; (iii) that the condition is likely to cause injury because of the childs inability
to appreciate the risk; and (iv) that the expense of remedying the situation is slight compared to
the magnitude of the risk. If the sprinkler head was a hazard that the boy would probably not
discover, it would meet the requirements for a showing of attractive nuisance, and the owner
would be liable. (B) is incorrect because the owner would continue to be responsible even if he
had objected to the children playing on the common area. (C) is incorrect because it is of no
consequence where the boy lived. (D) is incorrect because there is a higher standard of care where
attractive nuisances to children are concerned.
(A) The comedians knowledge that the politician was about to sit on the chair makes him liable for
battery. A prima facie case for battery requires an act by defendant that brings about harmful or
offensive contact to plaintiff, intent on the part of defendant to do the act, and causation. Here, the
comedians act in pulling out the politicians chair brought about offensive contact to the politician. The causation element is satisfied not only by direct contact but also by indirect contact.
Here, since the comedian set in motion the events that brought about the offensive contact, causation exists. The intent element is satisfied if defendant knew with substantial certainty the consequences of his act. Here, if the comedian knew that the politician was about to sit on the chair, he
also knew with substantial certainty that the politician would fall if the chair were moved. Thus,
the politician will prevail on a battery cause of action. (B) is incorrect because the comedians
negligence would not suffice for battery, and the only alternative cause of action based on negligence is negligent infliction of emotional distress, which requires that defendants negligent
conduct cause some physical injury to plaintiff. Here, the politician suffered no physical harm.
(C) is incorrect because the prima facie case for battery does not require physical harm to be
shown. Even if the politician cannot prove any actual damages, he will be entitled to a judgment
for nominal damages. (D) is incorrect because it merely states the comedians motive for moving
the chair. Regardless of the fact that the comedian did not have an evil motive or intend to cause
injury, he knew with substantial certainty that his conduct would cause an offensive contact to the
politician; this satisfies the intent requirement for battery.
(B) The plaintiff will prevail if the cement dust constituted an unreasonable interference. For a
private nuisance to be actionable, defendants conduct must amount to a substantial, unreasonable interference with plaintiffs use and enjoyment of property. The operative language in the
choice is interfered unreasonably, and in most MBE nuisance questions such language usually
can be found in the correct choice. (A) is incorrect because, even though a balancing test is
sometimes used in nuisance cases, mere increased costs is not a sufficient justification to allow
continued unreasonable interference with plaintiffs rights. (C) is incorrect because the number of
individuals affected is not determinative of whether a nuisance exists. (D) is similarly incorrect;
conformity to general methods in the industry will not preclude the company from being liable for
nuisance.

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TORTS

TORTS RELEASED QUESTIONS

A secretary worked in an office in a building

If the secretary asserts a claim against the

If the secretary asserts a claim against the

Questions 3-4 are based on the following fact

If the neighbor asserts a claim against the

If the neighbor asserts a claim against the

A construction company contracted to build

A company that sold new and used machinery

During the time the trench was open, a

One day the boy was playing on a press in the

The retired couple have asserted a claim

Questions 10-11 are based on the following fact

10. If the driver asserts a claim against the

Questions 13-14 are based on the following fact

Questions 15-16 are based on the following fact

16. If the claim is asserted against the boy, the

(A) Liable, because he intentionally

15. If the claim is asserted against the boys

(B) Liable, because, as a six-year-old, he

Questions 17-18 are based on the following fact

(A) The local retailer did not inform the

A woman recently purchased a new uncrated

(B) The stove was substantially in the

The childs burns were painful. They have

(C) The local retailer made some change

10. RELEASED QUESTIONS

Questions 20-21 are based on the following fact

12. RELEASED QUESTIONS

Questions 24-25 are based on the following fact

25. If the farmer asserts a claim against the

14. RELEASED QUESTIONS

When a woman visited a bowling alley to

A motorist drove his car into an intersection

About 30 minutes later, while the attendant

If the homeowner asserts a claim against the

If a claim is asserted against the owner on the

(C) Nothing, if the motorist had nothing to do

(A) Yes, because the owner owed the child the

(D) Nothing, because the motorists conduct

(B) Yes, because a two-year-old is incapable of

A buyer purchased a used car from a used

A customer went into a store at approximately

Statement 1. This car has never been involved

If the customer is to prevail on a claim against

16. RELEASED QUESTIONS

(C) Not recover, because the customer was a

A local telephone company negligently

While on a hiking trip during the late fall,

If the pedestrian asserts a claim against the

When the night turned cold, the hiker started

18. RELEASED QUESTIONS

A group of children, ranging in age from 8 to

A well-known politician was scheduled to

If the politician asserts a claim against the

(A) Yes, unless using bagged cement would

22. RELEASED QUESTIONS

24. RELEASED QUESTIONS